This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).








Robin VanLangen,





Western National Insurance Group,



Filed July 23, 2002


Robert H. Schumacher, Judge


Hennepin County District Court

File No. CT0110365



David B. Ketroser, 2000 Plymouth Road, Suite 175, Minnetonka, MN 55305 (for appellant)


Jeannie Provo-Petersen, Daniel J. Ryan, Johnson & Van Vliet, L.L.P., W-975 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)



Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.*



Appellant Robin VanLangen alleges the district court erred in vacating the arbitrator's award of no-fault benefits. We reverse and order the award reinstated.


Appellant Robin VanLangen was injured in an automobile accident on January 20, 1997. VanLangen sought and received medical treatment for her injuries, in the form of massage therapy and physical therapy, from a neurologist. The treatments, occurring during February and March of 1997, generated bills of $3,467. VanLangen submitted these bills to respondent Western National Insurance Group (Western National), and all bills were paid. After discontinuing treatment with the neurologist, VanLangen's pain from the injuries associated with the accident returned. Consequently, VanLangen received massage therapy from Mary Pavelka, a licensed massage therapist, from March 1998 through January of 2001, without prior referral from the neurologist or other medical doctor.

After consulting with an attorney in June of 2000, VanLangen learned that the massage therapist's bills might be covered by no-fault insurance. Consequently, she requested reimbursement for Pavelka's bills from Western National. Western National informed VanLangen that a prescription from a treating physician was required before it would consider paying for the massage therapy. On August 17, 2000, the neurologist wrote a prescription for the massage treatments VanLangen had received to date, and to continue as necessary. VanLangen forwarded the prescription to Western National, but coverage was denied. VanLangen filed a petition for no-fault arbitration.

Western National alleged several defenses to VanLangen's petition: (1) a one-year lapse in medical treatment and disability; (2) failure to provide notice; (3) lack of causation; and (4) unreasonable or unnecessary medical expenses. A no-fault hearing was conducted by the arbitrator. VanLangen testified and submitted itemizations in support of her claim. Western National submitted medical records and other documents in support of its denial. Both submitted Statements of the Case. On April 4, 2001, the arbitrator issued his decision awarding VanLangen reimbursement for Pavelka's bills plus interest and arbitration costs.

Western National brought a motion before Hennepin County District Court to vacate the arbitration award. The district court granted Western National's motion, ruling that the arbitrator exceeded his authority because the neurologist's prescription was issued after the massage therapy treatments. As such, VanLangen had a one-year lapse in medical treatment, and the lapse provision in Western National's policy precluded reimbursement for Pavelka's bills. VanLangen appeals.


Generally, arbitrators are the final authority on issues of fact and law. State Office of State Auditor v. Minnesota Ass'n of Prof'l Employees, 504 N.W.2d 751, 754 (Minn. 1993). With respect to no-fault insurance, arbitrators are limited to deciding questions of fact, while the courts are to interpret the statutes. Thomas v. Western Nat'l Ins. Group, 562 N.W.2d 289, 290 (Minn. 1997). The appropriate definition of a statutory term is a legal conclusion. Hibbing Educ. Ass'n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985); see also Thomas v. Western Nat'l Ins. Group, 562 N.W.2d at 291 (holding that interpretation of term "disability" in Minn. Stat. 65B.55, subd. 2 is a legal conclusion).

Minn. Stat. 65B.55 subd.2 (2000) permits a no-fault insurer to terminate no-fault eligibility when "there has been a lapse in medical treatment and disability for more than one year." Specifically, the statute provides:

A plan for reparation security may provide that in any instance where a lapse occurs in the period of disability orin the medical treatment of a person with respect to whose injury basic economic loss benefits have been paid and a person subsequently claims * * * an alleged recurrence of the injury * * *, the obligor may require reasonable medical proof of such alleged recurrence; provided, * * * that such coverages may contain a provision terminating eligibility for benefits after a prescribed period of lapse of disability and medical treatment, which period shall not be less than one year.


Minn. Stat. 65B.55, subd. 2 (emphasis added). The parties agree that the insurance policy at issue contains the lapse provision referenced in the statute. It is likewise undisputed that VanLangen's original notice of the accident and request for benefits met the one-year notice provision.

The district court concluded that the arbitrator had exceeded his authority in determining that the lapse provision did not preclude VanLangen's reimbursement for the cost of Pavelka's massage treatments. The district court focused on the fact that VanLangen sought and received treatment from Pavelka without a referral from a medical doctor and without notifying Western National of "any recurring pain that may have been related to the accident." VanLangen sought reimbursement for Pavelka's bills only after almost three years of treatment.

The district court concluded that if VanLangen thought the massage therapy was covered under the no-fault policy, she had to submit a claim "within the required one-year period, or at least shortly thereafter." Given that VanLangen's request came after almost three years of treatment, the district court concluded that her "actions are in clear violation of Minnesota No-Fault Law." The district court further concluded that the arbitrator had not exceeded his authority "when he determined: (1) that [VanLangen's] massage treatment was causally related to the * * * accident; and (2) that massage therapy was reasonable and necessary for the treatment of [VanLangen's] injuries [from the] * * * accident."

On appeal, VanLangen argues that the district court erred in failing to recognize that Minn. Stat. 65B.55, subd. 2 establishes a two-prong test, requiring a one-year lapse in bothmedical treatment and disability. VanLangen argues further that since the district court ratified the arbitrator's determinations that the therapy was reasonable and necessary, as well as causally related to the accident, the district court "implicitly" determined that VanLangen's disability did not lapse. Accordingly, the second prong was absent under Minn. Stat. 65B.55 subd. 2, and the district court erred in vacating the arbitrator's award under the lapse provision.

We agree. Minn. Stat. 65B.55, subd. 2 sets forth a two-prong test for a lapse provision to properly apply, eachof which is necessary for termination of no-fault benefits. VanLangen points out that the statute uses the word "and," as opposed to "or," between the terms "disability" and "medical treatment." As such, Minn. Stat. 65B.55, subd. 2 requires not one or the other to have lapsed, but both to have lapsed for one year before Western Nat'l can rely upon the lapse provision to deny VanLangen benefits. The plain language of the statute requires a lapse of both medical treatment and disability. Western National appears to concede as much, but contends that VanLangen has effectively waived this argument because she did not request a specific finding on the disability question at the arbitration.

We disagree. The lapse provision provides a basis for excluding what would otherwise be a covered loss. As such, this is an affirmative defense, and the insurer bears the burden of persuasion as to the application of the exclusion. Boedigheimer v. Taylor, 287 Minn. 323, 329, 178 N.W.2d 610, 613 (1970); see also Wolf v. State Farm Ins. Co., 450 N.W.2d 359, 362 (Minn. App. 1990) (applying burden of persuasion rule in no-fault context), review denied (Minn. Mar. 16, 1990). To the extent that the arbitration award does not include a specific finding on the "disability" issue, then, Western National must bear the burden.

Moreover, the Minnesota Supreme Court has categorized the issue as to whether a particular set of circumstances constitutes a "disability" under Minn. Stat. 65B.55 subd. 2 as a question of law. Thomas v. Western Nat'l Ins. Group, 562 N.W.2d 289, 290-91 (Minn. 1997). In Thomas, the supreme court ratified the "common usage" interpretation of the term "disability" as the appropriate statutory construction:

We hold that the term "disability" in the lapse provision of section 65B.55. subd. 2 is to be interpreted by its plain and ordinary meaning. We further hold that the arbitrator did not err by defining the term "disability" in the lapse provision as "anything affecting the normal physical and mental abilities of a person."


Id. at 291. If the legislature intended a more restrictive or technical definition of a term in the no-fault statute, the legislature has the option of providing such a definition. Id. Likewise if the legislature intended for the requirement of a second "notice" to the insurer when re-initiating potentially covered treatment, it could have so provided.

Applying the Thomas definition of "disability" to VanLangen, she was in fact disabled during the period of Pavelka's massage treatments. Although the arbitration award does not include a specific finding on the disability issue, the arbitrator's award is predicated on some initial determinations. In order to award VanLangen reimbursement for Pavelka's bills, the arbitrator had to conclude that the cost of the massage therapy was reasonable and necessary as well as causally-related to the auto accident. The district court specifically left these conclusions in tact.

Given these implicit findings, VanLangen was suffering from a "disability" under the Thomas court's definition. Unless VanLangen was suffering from "[some]thing affecting [her] normal physical and mental abilities," the therapy would not have been reasonable and necessary. The implicit findings necessary for the arbitrator to make the award logically correct compel the conclusion that VanLangen's disability did not lapse. Moreover, as set forth above, the absence of a specific finding on the disability issue only serves to negate Western National's affirmative defense to coverage, it does not preclude VanLangen's recovery under a "lapse" defense. See Wolf, 450 N.W.2d at 362.

We reverse the district court and order the arbitration award reinstated.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.